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Buehl v. Salmonsen

Supreme Court of Montana

July 17, 2018

LANNY BUEHL, Petitioner,
v.
JIM SALMONSEN, Acting Warden, MSP, Respondent.

          ORDER

         Lanny Buehl petitions this Court for habeas corpus relief, alleging that his incarceration is illegal following a parole violation hearing. He requests his immediate release.

         By way of background, on May 9, 2011, Buehl entered a plea of nolo contendere to felony assault with a weapon in the Ninth Judicial District Court, Glacier County. The District Court imposed a ten-year prison term with all of the time suspended. A few months later, the State filed a petition to revoke because of violations of several probationary terms. Buehl denied all violations, and the court held an evidentiary hearing on September 8, 2011. The court found that Buehl had violated two of his conditions. The court subsequently revoked his suspended sentence and sentenced him to a ten-year prison term. The court noted that Buehl was entitled to 301 days of credit for time served.

         Citing to Morrissey v. Brewer, Buehl now argues that his due process rights have been violated for his initial hearing after arrest as aparolee. 408 U.S. 471, 92 S.Ct. 2593 (1972). He asserts that he was arrested and detained on February 1, 2018, and that his preliminary hearing occurred on February 7, 2018 in the Flathead County Jail, which was not where "the alleged violations occurred" in Poison, Montana. He maintains constitutional rights' violations for these reasons: (1) his Probation and Parole Officer was not present at the hearing for him to confront and cross-examine, and (2) he was not given an on-site hearing in Poison within five days of his arrest and detention, pursuant to § 46-23-1024(2), MCA.

         Parole revocation involves certain due process requirements. The United States Supreme Court has held that following arrest, a parolee has a right to an administrative on-site hearing at "the state institution" to determine if reasonable grounds for revocation exist. Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. If the state institution is too far, the court noted that "due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available." Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. The high court specifically stated that parole revocation "is a narrow inquiry; the process should be flexible enough" Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. The Supreme Court emphasized that a parole revocation does not equate to a criminal prosecution. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604.

         In Montana, the parole revocation process has been codified in both statutes and administrative rules. Sections 46-23-1021, 46-23-1023, and 46-23-1025, MCA; Admin. R. Mont. 20.25.801 (2016). Pertinent here is § 46-23-1024(2), MCA, which sets forth the process for the on-site hearing to establish probable cause.

The initial hearing is an onsite hearing but may be conducted via interactive videoconference and must be held to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. An independent officer, who need not be a judicial officer, shall preside over the hearing. The hearing must be conducted at or reasonably near the place of the alleged parole violation or arrest and within 5 days after arrest. The parolee must be given notice of the hearing and must be allowed to appear and speak in the parolee's own behalf and introduce relevant information to the hearings officer.

         Section 46-23-1024(2), MCA.

         Upon review, Buehl is not entitled to habeas corpus relief or his release because his due process rights have not been violated. Montana's statutes only provide that a parolee may have witnesses, not that a parolee may confront his Probation and Parole Officer since the basis for the arrest is in a written report. Sections 46-23-1023(2) and 46-23-1024(3), MCA; see also Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. Section 46-23-1024(2), MCA reads that "[t]he hearing must be conducted at or reasonably near the place of the alleged parole violation . . .." (emphasis added); see also Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. Kalispell is reasonably near Poison. While Buehl may correctly argue that a hearing shall occur within five days after arrest, he does not provide any other details concerning his arrest and detention. It is unknown whether he was originally held on a probation and parole hold pursuant to § 46-23-1023(4), MCA, which authorizes a probation and parole officer to detain a parolee up to 72 hours without bail. This hold is interrupted by the commencement of a parole revocation proceeding. Section 46-23-1023 (4)(c), MCA. Buehl has not provided any supporting documents to substantiate an onsite hearing delay.

         Buehl, as a petitioner, has the burden to present a prima facie case that he suffers an illegal incarceration. Miller v. Eleventh Judicial Dist. Ct, 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186; § 46-22-101(1), MCA. Buehl has not done so. Therefore, IT IS ORDERED that Buehl's Petition for a Writ of Habeas Corpus is DENIED.

         The Clerk of this Court is directed to send a copy of this Order to counsel of ...


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